Lionsgate Censors Remix Video That The Copyright Office Itself Used As An Example Of Fair Use

from the a-tale-of-copyright-and-fair-use dept

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

"Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth."

-Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube's system and filed a DMCA takedown and had my remix deleted for "copyright infringement." Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.

On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had "matched third party content" owned or licensed by Lionsgate and "ads may appear next to it." Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not ”monetized platforms“.

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.

Concerned at what appeared to be a blatant disregard for fair use provisions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube's built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had "matched third party content" owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn't I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for "visual content" owned by Lionsgate and the claim I had just fought and finally won had been for "audiovisual" content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media. Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.

On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.

“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times. Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.

Reader Comments

There are several problems with copyright and part of them (and possibly the most problematic) are here to show that the system is completely broken.

First of all the content is taken down before proper scrutiny and warning. I know it may be a problem with Youtube ContentID but ultimately the system is a direct result of current copyright regime as it is an attempt from Youtube to lessen the burden on its shoulders. And we've seen from Dotcom's case that you are damned if you help the MAFIAA and if you don't (isn't Youtube being prosecuted by the MAFIAA?). The proper course of action would be to issue a warning to the account owner which could be disputed. After that the copyright holder could either accept the dispute or move to the third step which would be to fill an official DMCA takedown request which could be challenged by the account holder and taken to a full judicial oversight. That's fair. You don't arrest someone because they might have violated laws (unless in very specific cases where there is evidence that immediate arrest is needed). Instead there's a full trial to make sure it's punishable with prison, a fine or simply it is not a crime. This is called due process. I'd argue that copyright directly violates the Constitution in that aspect.

Then there's vagueness. It is OBVIOUS for any sane person that a 2 minute clip of a X hours series will not do any harm to the copyright holder. That language should be clear, obvious and concrete in the law. You need to establish conditions where it's undeniably fair use (ie: up to 20% of the content) or rather specify which cases copyright covers (ie: noncommercial use is not covered by copyright). Many said that the Govt/MAFIAA would be reasonable and not abuse SOPA vague language but in all seriousness they already abuse current copyright laws exactly because of the same problem.

You also have the fact that the video was relatively in peace until the rights changed hands. This is a major problem in current copyright system. It is supposed to protect the artists but they usually do not own the rights to their own creations due to weasel-crafted contracts from labels/studios. Copyrights should belong only to those directly involved in the creative process. The lady that cleans the set the movie is going to be shot does not own the copyrights because it's a support activity. Same for the cameraman. So why the studios, who give support in form of infra-structure and others, get to OWN the rights? The actual creators should be the ones deciding what they want to do with their content. I'm fairly sure the actual creators of the series that got used in the remix are quite happy to see the fans creating on top of it. Surely there will always be the Gene Simomns, the Metallica (etc) morons that will be lawsuit-happy but there are many DMCA takedowns and lawsuits out there that go against the artist wishes.

The irony here is that we have an expert in fair use and the likes who can't even get due process on a clear fair use case. Can we agree now that the system is broken and start over, dear Congress?

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One point I would like to add is that there has to be stiff penalties for those Media interests that file false take-down requests or abuse the DMCA for their own monetary gains.

There has to be something stiff enough to cause them to truly think before issuing the take-down request.

It can't be something simple like a fine because all know those fines are always small to the big media companies. It has to be something like they lose the copyright on the work and the work is placed in the public domain.

The first time that penalty is used I will bet the media companies make sure they have good solid infringement happening before they issue another take-down request.

But aside from that idea the point is that there is nothing that can be currently done to those companies that abuse the DMCA.

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There is no such thing as cruel and unusual punishment in the world of copyright. The RIAA, DOJ, and others have filed countless briefs arguing so, and Thomas and many other lab rats have proved it conclusively.

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Monetary fines meant something back in the early 1900s, the only thing you have to do is adjust for inflation and the larger markets available. I think a $500 million fine for each incorrect notice sent would cool their heads quite quickly.

Doesn't really get any more clear than this

If this isn't the perfect example of the maximalist position of 'the only fair use is paid use' then I don't know what is. They were willing to treat it as fair use, but only if they got paid.

I can only hope this goes public enough, and garners enough attention, that Lionsgate and MovieClips both realize it's about to explode in their face, and actually think about their actions, at least in this case, and hopefully in future ones.

3 Strikes

I think we should have a 3 strikes rule. If a content owner is accused of abusing the DMCA process three times, they should lose their copyright on the work in questions and it should immediately go into the public domain.

We can give them an appeals process, but during the appeal, the content should be freely available.

A more serious question - if the complain it now dropped, or this goes far enough that a court finds that it is fair use, does the actual content owner get the money that was generated by the ads?

Fair Use needs to be updated in the law

What is fair use needs to be written into the law. It needs to be explicit that those definitions are the minimum boundaries of fair use, not the outermost boundaries.

To defeat a counterclaim of fair use should require proof of actual damage to the commercial value of the copyright work.

And yes, just as there should be 3 strikes to lose your copyright on bogus DMCA takedowns, there should be 3 strikes on bogus fair use claims.

An operation that is massively copying and packaging knockoff DVDs to look like the original retail product is obviously not fair use. It obviously damages the commercial value of the work being infringed.

A YouTube video clip that qualifies as fair use in at least one of several ways does not damage the commercial value of the original work. It may even increase it in some cases.

There is a line in between these two somewhere. The dinosaurs want to decrease the radius of the boundary of fair use until it becomes a point of zero size and disappears into a black hole of nothingness while copyright length increases to infinity and beyond.

Re: Fair Use needs to be updated in the law

What we need are clear guidelines on what actually constitutes fair use.

We need numbers and specifics, not crap such as: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include[...]the effect of the use upon the potential market for or value of the copyrighted work.".

What the fuck is that supposed to mean? It just boils down to how well the prosecution can argue that a 20 second (or one sentence) clip will deal a crushing blow to their business...which is bullcrap.

As it stands, the fair use rules require interpretation and lots of arguing, so the decision can go either way. It ridiculous. You might as well rewrite the fair use rules to say: "Roll a d20 vs a DC of 16. Apply Charisma as a modifier.".

Re: Re: Fair Use needs to be updated in the law

Roll a d20 vs a DC of 16. Apply Charisma as a modifier

A DnD fan I see. I'm a bit rusty on the rules but isn't that amounts to only 20% base chance of failure? If it is assumed that the mashup artist are the ones making the test, isn't 80% base chance of successfully defending fair use is currently unrealistic?

Of course I'm assuming a roll low system. As I said my DnD is rusty. But in a roll high system, where there's a 20% chance of successfully defending fair use, it still is highly optimistic under the current copyright regime.

Re: Re: Fair Use needs to be updated in the law

Yes, we do need clear guidelines on what is fair use. I was thinking that, but I didn't write it because I was thinking so fast I jumped ahead to the thought that any express guidelines would then become construed as the maximum boundaries of fair use, or only allowable examples of fair use.

The guidelines need to include examples. But the guidelines need to be clear enough that claims of infringement against fair use can be quickly and inexpensively defended against. A three strikes to lose your copyright wouldn't hurt either. Also maybe a plaintiff pays all costs if it is found to be fair use. These would stop most bogus DMCA takedowns immediately.

But then the DMCA itself needs to be dealt with. Every bad thing that was predicted about it has come true, and worse.

Re: Fair Use needs to be updated in the law

An operation that is massively copying and packaging knockoff DVDs to look like the original retail product is obviously not fair use. It obviously damages the commercial value of the work being infringed.

I agree with you that it is obviously not fair use, but I am hesitant to say that it damages the work's commercial value. If anything, I would say it more accurately represents it, since it is clearly still profitable to undercut the monopoly price.

I am certainly in favour of amending the fair use clause in USC Title 17. I advocate the following, and defy anyone to find ambiguity in it:

17 USC § 107 - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work is not an infringement of copyright.
All uses of a copyrighted work are fair.

You know, I always read that to punish those who abuse copyright by ignoring fair use, one has to prove that this abuse was willful, and thus those cases would go nowhere. Can't any of the information here be used to prove that this blatant disregard of fair use was malicious and willful? Since it was explained multiple times to them, and they *chose* to ignore it.

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Sadly, all they have to do is give reasons as to why the fair use claim was rejected. Then they can claim that fair use was considered but deemed not applicable, again making a claim of willful malicious abuse go no where.

Give 'em Hell

I sometimes feel like the Lone Ranger out here in the wilderness complaining about IP law, but you not only complain, you DO something about it. For whatever it could possibly be worth, I am proud there are still people in the US who will FIGHT for their rights every step of the way and never give in.

Exodus?

YouTube has to be careful here, or they're going to lose the creative artists who make it more than 'a bunch of cat videos.' Kelvington, another mashup artist, has already left because of similar problems.

Re: Exodus?

look out for the left....

That will come from Warner Brothers even if he succeeds against Lionsgayte.

I personally think that Twilight is utter garbage anyways. The writer took an essential part of vampire lore and just flushed it down the toilet. Immortal, yes; Sunlight, no. But this isn't the time or place for that discussion.

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It was a bit of an embittered statement. I didn't mean to imply Google was to blame for the current situation, just that it's aggravating that these companies can use the justice system to intimidate each other, and as collateral damage, screw over the public.

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The publishers are to blame as they have gotten laws passed which make third parties liable if they do not do as the publishers demand. Further they are challenging every little piece of protection given to third parties, and use lawsuits to destroy weaker companies that offend them.

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"Google/Tube is still complicit"

In somewhat the same way that you would be complicit in the robbery of a bank by standing there with your hands up while the armed thieves packed the money into bags.

Remember, they are a service provider to both parties. They provide us (the public) a platform to show videos around the globe. They make it possible to monetize that content. They also provide a service on that same platform for people to complain about or monetize uploads that belong to them but were uploaded by someone else. You could misuse their service by uploading content you do not have the right to, and content owners could misuse the service by claiming rights to something that is not theirs.

Move it to the real world. You are driving down the road and get stopped by someone yelling that you have stolen their car. You didn't steal their car. You tell them this, but they don't believe you. You get out the registration, check VIN numbers, and it either turns out that the car is yours, or it belongs to the other guy. NOBODY SHOULD BE BLAMING THE ROAD FOR ANYTHING.

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In somewhat the same way that you would be complicit in the robbery of a bank by standing there with your hands up while the armed thieves packed the money into bags.

Bad analogy. With the DMCA business model, Lionsgate is the thief taking the money, while wielding Google as the gun, and the courts as the getaway vehicle.

Only Google can ban users, or transfer rights to files on their systems. In this case, complying with the law is in fact stripping artists of rights to their work. For good or for bad... this is complicity.

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Bullshit it's not. Holding a gun to my head and making me rob a bank does not make me complicit. Google is under the very clear threat of being drug into court if they don't follow the law. This does not make them complicit.

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No... I'm not placing blame on Google, I'm just saying their service is a tool being used just like a gun to a bank robber. Not the gun's fault... but the gun is complicit with the will of the thief.

Maybe its pedantic, but complicity with a bad law or a good law is complicity all the same.

I'm not blaming Google. Just pointing out how key their actions are to making it possible, perhaps even easy, to strip people of their media rights. Google/YouTube is acting in compliance with the DMCA, which is being used to steal from the little people... that's the business model.

It's not Google's fault. It is Google's service being bent to the will of cronyism.

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They have all of their ICBMs parked off of Google's border with a bunch of itchy trigger-fingered officers ready to receive word, while casually telling Google it would be in their best interest to jump.

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Any defence of this rigmarole, I imagine, would be strong in the way of the blargha flargha.

I've been waiting with baited breath for Bob/AJ/OOTB/etc, to show up, but like usual, they are quiet whenever there is an article which paints their beloved industry in a very, very, very bad light.

Still, it would have been interesting seeing AJ argue that this really was commercial copyright infringement because the guy uploaded it to YouTube, and YouTube and Lionsgate were getting money from it.

That's what happened to me

I asked New Media Rights the same thing and Patrick McKay of Fair Use Tube about it too. But my situation is that didn't filled counter notices right and One instance Yoitube got the claimants wrong and refuse clear it out and all sorts of mess like this.

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Though I'm probably butchering the quote, while 'Never attribute to malice what could explained by stupidity' is usually the best way to think of things, in most case I'm betting they know full well the rules regarding fair use and the public domain, they just simply don't care.

And why should they after all, it's not like they'll get more than a slap on the wrist(at most), no matter how much they abuse the system, so what incentive do they have to do anything different?

The only way things will get any better is if the rules are tightened up so abuses are, if not impossible, then at least significantly harder to pull off, or if stiff, actual penalties were put into place to punish abuses of the system like this.

My favorite so far has got to be the idea that after so many bogus claims the company loses, permanently, the copyright over the item in question. If something like that was the penalty, that on it's own would drastically cut down on fraudulent claims.

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It is not stupidity, it is the fact that automatic systems cannot determine fair use, and so they ignore it as much as possible. I suspect that the first response to a challenge is to simply re-assert the claim, without any investigation of the challenge.

I'd assume even if they eventually have to give in and take the ads down, they will get to keep the money they got while they were up, and have a decent incentive to do this to every popular video they know is not infringing and keep the charade up as long as possible on each one.

Youtube is becoming more and more like old school media

Youtube started out as a user and creator driven platform. There have been plenty of articles and comments here about how Youtube is now treating content creators the same way old media does.

They are now also treating their viewers like old media does, people to be feed whatever they want with minimal control by the viewers. It gets worse every time they "improve" their front page.

The first time I notice this change of attitude was when they no longer showed how many thumbs down a comment got. Hey we only have happy thoughts here and no one disagrees with anyone. If your going to have a thumbs up and down system show BOTH numbers or its meaningless.

This latest improvement just about completes conversion to old media.

1) Every time I sign in it wants me to use my legal name. There is no, "NO I don't want to do it ever" button, just a button they says not right now and bother me about it again.

2) You can no longer view all the comments at once, but have to load each group individually. This makes it a pain if you're trying to find a particular comment.

3) Comments can no longer be threaded. Instead you have to keep clicking to see the comment the person was responding to. This is a lot like reading a book backwards.

4) The only way to not get Youtube's recommendations is to delete your viewing history after each session. It use to be a simple opt out.

5) Every time one of the people you subscribe to comments, subscribes, or like a video it gets jammed into your viewing list. The only way to stop this opt out individually for each subscription.

6) Old videos keep showing up at the top of the viewing queue so you have to search your viewing list for the new stuff.

7) The most popular comments are not the most popular comments. Looking through the comments you can find some with more thumbs up. So either Youtube or it's algorithms are deciding whats most popular for us.

Finally this is an old complaint, ads. I know Youtube has to make money and I'm ok with that. However; why do they have to put a text ad over the video I'm watching? Is there law I don't know about the says you can't put it above or below or on either side of the video? If they did this I wouldn't turn it off as soon as it pops up and might actually read it.

Re: Youtube is becoming more and more like old school media

I completely agree with all the comments you've made.
It's amazing how people put up with the changes so long as you implement them slowly enough.

I got so frustrated recently with the spastic recommendations Youtube started forcing in my face that I went into the settings to change things around. I just presumed there would be a 'switch off recommendations' options, but NO. After half an hour or so of looking about for a solution, I cleared my Google web history and deleted my account. Done.

Re: Re: Youtube is becoming more and more like old school media

Just thought I'd share my own experience. In early 2012, I built and put together my first computer. I recorded the whole building process using my camera. Just to see what would happen, I picked a couple of the videos and opted for monetization. Here's the one I'm talking abouthttp://www.youtube.com/watch?v=ijoC2jqllto
A couple of days ago, I got a Youtube email saying that they couldn't monetize one of my vidoes because "we were not able to verify that you have the appropriate commercial use rights for all visual and/or audio elements."
At one point in the video, I do point the camera at the monitor but all I had on was an IRC program and a GPU temp monitor. I will admit, the monitor is copyrighted, but like with the story in this article, I'm pretty sure my use is itself allowed (given that it was brief, and the temp monitor was not the focus of the video, it's only shown for a few seconds, and also that the use is transformative, I'm merely recording what's happening on MY screen).
I'm not that pissed off, as I'm not expecting any of my videos to gain Gangnam Style fame, but it is amusing. No-one else has my footage. No-one else would want to claim ownership over my footage. It's just me talking about the components in my new computer and how "great" it is. I'm not going to ever bother registering the work. Yet, Youtube here is taking a cautious attitude and saying that I cannot monetise my own work.

Speaking of Lionsgate...

There for a while, Lionsgate had very tough copy protection on their DVDs ("Twilight: Breaking Dawn Part 1" for example). Now, there's hardly any. I rented and burned off "Dredd" the other day, and all it had was encryption and region coding. (Yeah, I know, region coding isn't copy protection.) Recent Lionsgate releases haven't had the fancy-pants copy protection they used to.

Lionsgate is actually violating copyright ... irony?

let me get this straight .. Buffy vs Edward is itself.. a copyrighted thing, and Lionsgate is trying to profit off of it (keeping in mind that Youtube and the author have an agreement) Time to sue Lionsgate for violating the copyrights of the video maker..?